Scottish Court of Session Decisions

This was an action of declarator, raised at the instance of Sir Andrew Agnew of Lochnaw, Bart., against the Lord Advocate, as acting for the Commissioners of Woods and Forests.

The pursuer averred that (cond.4) “The several lands mentioned in the summons are all included in the said Crown charters and deed of entail, and are upon the sea-shore. The portions of the shore mentioned in the summons, and extending between the several boundaries there specified, have for time immemorial, or at all events for a period greatly exceeding forty years, been in the exclusive possession of the pursuer and his ancestors as part and pertinent of their said estates. They have constantly and without challenge dealt with the said shores as their own property, and from time immemorial, or at least for upwards of forty years, have exercised their proprietory rights by acts of possession of every kind of which the subject was capable. Amongst the said acts have been taking gravel, sand and stones from the shore, and preventing others from doing so, boring for coal and freestone, erecting and using saltpans on the foreshores, using the shores for landing and embarking persons, cattle, and goods, taking wrack and ware, and letting for a rent to others the right of doing so. The said possession has been exclusive of any possession on the part of others.” And further (cond. 5) “From time immemorial, or at all events for more than forty years, the pursuer, the said Sir Andrew Agnew, and his predecessors, proprietors of the said lands and others foresaid, have, by virtue of their said writs and titles, possessed the oyster beds, scalps, or fisheries on the shores between high and low-water mark of ordinary spring tides ex adverso of their whole lands above mentioned, and also the salmon fisheries in the sea ex adverso thereof, and that exclusively, continuously, and without any lawful interruption made to them therein. They have, during the whole of the said period, by themselves, their tenants, and others deriving right from them, taken oysters from the

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whole of the said shores, and have also fished for and taken by all lawful modes salmon and other fish of the salmon kind in the sea ex adverso of the said lands.” None of the titles contained any express grant of the foreshores or fishings. The pleas of the pursuer were as follows “(1.) The shore ex adverso of the lands and barony libelled is the property of the pursuer in virtue of the titles by which the said lands and barony are held, and he is entitled to decree in terms of the first conclusion of the summons. (2.) The shores libelled having been possessed for time immemorial, or at least for forty years, by the pursuer and his predecessors, under the said writs and titles, as part and pertinent of his said estates, the property thereof belongs to the pursuer, and he is entitled to have the right of property confirmed as concluded for. (3.) The pursuer has, in virtue of the foresaid titles—and separation, in respect of the said titles followed by the possession condescended on—the sole and exclusive right to the oyster and salmon—fishings upon and ex adverso of the shores of the said lands, and he is entitled to decree declaring his said rights as concluded for.” And those of the Crown were—“(1.) The Crown not having made any grant to the pursuer or his predecessors or authors of any of the subjects claimed, the defender ought to be assoilzied. (2.) The writs founded on not constituting a title in themselves to the portions of foreshore claimed, nor to the oyster and salmon—fisbings ex adverso of the several lands mentioned in the summons, and prescriptive possession not having been had of any of the said subjects, the defender is entitled to be assoilzied from the conclusions of the summons, with expenses.” By a minute, the pursuer subsequently abandoned the conclusions in the summons as to rights of oyster fishings and salmon, reserving to himself the right to bring a new action relative to these rights.

The Lord Ordinary on 31st July 1872 pronounced the following interlocutor and note:—

“The Lord Ordinary having heard counsel for the parties, and considered the argument and proceedings, including the proof, Finds, that by interlocutor of 20th January last, the Lord Ordinary, in respect of the minute for the pursuer No. 14 of process, allowed him to abandon the conclusions of the present action relating to oyster-beds, scalps, or fisheries, and that these conclusions are accordingly now to be held as having been abandoned; Finds, in regard to the remaining conclusions of the action, that they have not been opposed on the part of the defender, except in so far as they relate to the shore of the sea between low and high water mark of ordinary spring tides ex adverso of the pursuer's lands libelled; Finds it sufficiently established by the titles produced, and by the possession which has been had under them by the pursuer and his predecessors for forty years prior to the institution of the present action, or for time immemorial, that the shore of the sea above low water mark of ordinary spring tides ex adverso of the lands libelled belongs to the pursuer, subject always to and under reservation of the right of the Crown to, or in, the same for public uses, as accords with law; Therefore, subject to and under reservations of said right in the Crown, finds and declares in terms of the conclusions of the summons, so far as the same have not been abandoned, and decerns: Finds the pursuer entitled to expenses, allows an account thereof to be lodged, and remits it when lodged to the auditor to tax and report.

Note.—This case involves some points of great importance and of general interest, touching the rights of proprietors having estates adjacent to the seashore, on the one hand, and the rights of the Crown and the public, or the Crown for the public, on the other.

It was not disputed, but, on the contrary, expressly conceded, on the part of the Crown, as defender in the present case, that the shore, or foreshore, as it is called, that is, the ground between low and high water mark of ordinary spring tides, is alienable, subject always to certain uses, such as the anchoring and ballasting of vessels, passage, and others, which must always remain vested in the Crown for the public; and, on the other hand, it was expressly stated on the part of the pursuer that he did not, and could not, claim the shore in dispute except subject to the right of the Crown therein for all such public uses as those referred to, and that he had no objection to that right being reserved in the most ample manner. In this view of the matter it is probably of little practical importance whether the radical right of property of the particular pieces of shore ground immediately in question in the present case is to be held to be in the Crown or in the pursuer, for it does not appear that any uses of these pieces of ground have been contemplated, or could well be taken, by the Crown and public greater or more than the pursuer has expressed his readiness to concede, and has stated that he always has conceded. It is possible, however, that in other places, and in different circumstances, or even in the places now in dispute, the foreshore might, as was suggested on the part of the Crown, be of considerable value in respect of the discovery of minerals underneath the same, independently altogether of the ordinary public uses which have been reserved.

The question, therefore, which was discussed before the Lord Ordinary was, not whether the foreshore is alienable, but whether it is, or is not, to be held as having, so far as claimed by the pursuer in the present case, come to him from the Crown, and now belongs to and is possessed by him as part of his estate, subject to the reserved right in the Crown for public uses. It was not said for the pursuer, and certainly no title-deed or other evidence has been produced or referred to by him to the effect, that the foreshore was ever transferred to him or to any of his predecessors by express grant. But his contention was—1st, that the mere fact of his lands abutting on, or lying adjacent to the shore is sufficient, under his titles—which are neither bounding nor otherwise in their terms exclusive of the shore, but are of the most comprehensive character, and contain, beside the specific lands conveyed, clauses of parts and pertinents in the most ample and unqualified terms—to give him the right claimed; 2d, that his barony title, with its clauses also of the most ample and unqualified nature, of parts and pertinents, is at any rate sufficient to infer, and must in law be held to include in itself, a right to the foreshore; and 3d, that at any rate, and in the least favourable view for the pursuer that can be taken of his case, it must be held that, in virtue of his titles, and the possession which has followed on them, his right to the foreshore, as claimed by him, has been sufficiently established.

In the view which the Lord Ordinary has taken of the proof, it is unnecessary to determine whether the first two of these pleas are in themselves, and irrespective of the state of the possession, sound or

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not; although certainly, as will be afterwards seen, some of the authorities and precedents go the length of supporting the affirmative. The Lord Ordinary's judgment in the present case is founded on a combined view of the pursuer's titles and the possession which is proved to have been had under them.

There can be no doubt, the Lord Ordinary thinks, that the proof preponderates greatly in favour of the pursuer. He thinks, indeed, that it establishes all the exclusive, immemorial possession on the part of the pursuer and his predecessors that could have been expected, or that could well have been had, considering the nature of the subject—shore ground having no peculiar advantages—and the public uses to which such ground must always be liable, let the proprietory right to it be whose it may. It appears to the Lord Ordinary to be satisfactorily established by the pursuer, not only that he and his predecessors have for time immemorial been in the possession and occupation of the foreshore in dispute, and have taken from it stones and sand for the building and repairing of houses and dykes, and for the making of roads and walks, and wrack and ware for the manuring and cultivation of the lands, whenever and as often as occasion required. Not only so, but the Lord Ordinary thinks it is also proved that, while such has always been the nature of the possession of the pursuer and his predecessors, by themselves, their tenants, and dependants, it has also been proved that the advantages derived from such possession have been valuable, and uniformly treated as such by all concerned. Accordingly, the tenants on the Lochnaw estate appear to have taken their farms and paid additional rent on that footing and assumption. On the other hand, the proof shows that the advantages now referred to were not possessed by the public generally, or by any party or parties at all other than the pursuer and his predecessors, and their tenants and dependants; but, on the contrary, that all others were challenged and prevented in various ways and at various times—in short, as much and as often as circumstances required—from interfering with the exclusive possession which it is clear the pursuer and his predecessors have all along had, and understood and believed they alone had right to. At the same time, it must be acknowledged that there is some evidence of acts of possession by other parties; but, having regard to the whole proof, the nature of the subject, and all the circumstances, the Lord Ordinary has felt himself unable to attribute such acts of possession to any right of property in, or asserted by, these other parties. He thinks, on the contrary, that they have been sufficiently accounted for, where not mere trespasses, on the footing of having been allowed by the pursuer and his predecessors from feelings of good neighbourhood, or on other grounds in no degree derogating from the paramount right of ownership and of possession which he must hold to have been all along in the pursuer and his predecessors.

The Lord Ordinary may add that he did not understand at the debate that the Crown seriously disputed the state of the possession to be very much of the character now described. What was maintained by the Crown seemed rather to be that the acts of possession and enjoyment proved by the pursuer were more calculated to support rights of servitude than a right of property. The Lord Ordinary, however, cannot think so. It appears to him that the acts of possession and enjoyment referred to were far to numerous, varied, and exclusive in their character to be limited to servitude rights merely. The possession and enjoyment established to have been had by the pursuer and his predecessors must be looked at as a whole; and so looking at them, the Lord Ordinary is unable to draw from them any other conclusion than that they show the pursuer and his predecessors to have dealt with the shore ex adverso of their lands as belonging to them in property, subject, it may be, to the burden of certain public uses, and not as having merely a variety of servitudes over it, as property belonging to the Crown or some other party.

Having regard, then, to the fact that, while the pursuer's admitted property, held by him under Crown titles, and, so far as the present question is concerned, to a large extent under a barony title, lies adjacent to the sea, and that there is nothing to be found in the titles by way of reservation, or a bounding description or otherwise, to exclude the shore, the Lord Ordinary is of opinion that, under these titles, fortified and explained as they are by the possession which has been had under them, it must be held that the shore in dispute belongs to the pursuer, subject to those uses of which the public, and the Crown for the public, cannot be deprived. It may be, he thinks, very fairly presumed that such was the object and intention of all concerned when the pursuer and his predecessors obtained right to their lands from the Crown, and it is not easy to discover any good or substantial reason for its being otherwise. It is obvious that there has been no intention, when the pursuer's Crown titles were granted, to convey the shore between low and high water ex adverso of his land to some party other than the pursuer or his predecessors, or that intention would have been long ago carried out. It is scarcely conceivable, indeed, what object or interest any party other than the pursuer and his predecessors, whose lands lie adjacent to the shore, could have had in obtaining a right by itself, and unconnected with any other property whatever, merely to the shore in question. And it is also inconceivable that the Crown could have had any real or substantial interest in witholding from the pursuer and his predecessors, as the owners of the adjacent lands, a right of property in the shore, the public uses thereof being necessarily reserved.

In accordance with and in confirmation of these views, arising from the nature and terms of the pursuer's titles and the other facts of the case, the weight of authority appears to be decidedly in his favour. Thus Lord Stair (2. 1. 5), in treating of things which cannot be appropriated by any one in particular, but are common to all, such as the sea, navigable rivers, and others, alludes to shores in the following passage of his Institutions:—‘So all nations have free passage by navigation through the ocean, in bays and navigable rivers and have also the benefit of stations or roads and harbours in the sea and rivers; and have the common use of the shores for casting anchors, disloading of goods, taking in ballast, or water rising in fountains there, drying of nets, erecting of tents, and the like. Yet doth the shore remain proper, not only as to jurisdiction, but as to houses or works built thereupon, and as to minerals, coals, or the like found therein, and so is not in whole common, but some uses thereof only.’ Except, therefore, as regards the public uses here referred to by Lord Stair, it is clear, at least on his authority, that the shore is alienable

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by the Crown, and may be appropriated by a private individual; and, for the reasons already adverted to, the Lord Ordinary must hold that it was conveyed, and was intended to be conveyed, to the pursuer and his predecessors under their Crown titles. This view is further supported by Lord Stair in another passage of his work (2. 3. 60), where he states that lands being disponed as here, with parts and pertinents, all is carried thereby that falls under the denomination of the lands disponed, a calo ad centrum, and all that in the disposition was accustomed to follow it, not only as servitudes, but even contiguous parcels of land which were not known as distincta tenementa or parts of any other tenement, except what the law reserves or the express provision of the superior and although the learned author goes on to observe that the law reserves ‘all those things which are called regalia or jura publica,’ he nowhere, that the Lord Ordinary can discover, says that the shore, so far as it may be appropriated by individuals, is inter regalia.

The authority of Mr Erskine (Institutes, 2, 6, 17) while generally to the same effect, is even more unequivocally for the pursuer as regards the matter in question, for he says that ‘by our constant practice the proprietors who border on the sea enclose as their own property grounds far within the sea mark;’ and he refers to the case of Bruce, Nov. 25, 1714, M. 9542, where it appears to have been expressly found that ‘sea-greens are not inter regalia,’ and that ‘the sea-greens might belong to the neighbouring heritors as part and pertinent without a special grant.’

Mr Bell, again, in his Principles, states the law in almost the very terms of the Lord Ordinary's finding in the prefixed interlocutor. After some explanations in regard to the shore, which it is unnecessary to specify, he says (sec. 642)—‘It is not, as in England, held to be property reserved to the Sovereign, but presumed to be granted as part and pertinent of the adjacent land, under the burden of the Crown's right as trustee for the public uses.’ And in the next section (643) he goes on to state that ‘the shore, so far as capable of appropriation, may in England be part of the manor of a subject. In Scotland it may be conveyed by the royal grant, subject to the public use; and grants of the adjacent land are under that implied burden’ And the doctrine thus stated Mr Bell goes on to support and illustrate in various ways, all tending to show, in conformity with the Lord Ordinary's judgment in the present case, that the owner of the lands adjacent to the shore is, in the absence of an excluding boundary or reservation, or other qualification or limitation in his title, to be held to have right also to the shore, but subject to what must always be held to be the reserved right of the Crown as trustee for public uses. Nor can the Lord Ordinary find that Mr Bell, any more than Lord Stair or Mr Erskine, says that the shore is one of the regalia which cannot be carried by a clause of parts and pertinents, but can only be carried by an express grant or by a barony title combined with prescriptive possession. The passages in his Principles to which reference has already been made show very clearly that he entertained no such opinion.

In addition to the institutional writers who have now been referred to, many decided cases to the same effect were cited in argument to the Lord Ordinary, and amongst others the following:—”

The Magistrates of Culross v. the Earl of Dun-donald, 15th June 1769, M. 12,120, where it was decided that a Crown charter of lands described as bounded by the sea conveyed to the grantees the right to the beneficial occupancy of the shore, in preference to an after Crown grant purporting specially to convey the sea-shore as reserved Crown property.

“ Innes v. Downie, 27 May 1807, Hume's Decisions, p. 552, where it was held that a bank of shelly—land contiguous to the sea-shore, and covered by the sea in ordinary tides, was not inter regalia, but a pertinent of the adjacent lands. The report of this case is particularly valuable for the opinion it contains of Lord President Islay Campbell, to the effect that the shore with its adjuncts, such as sea-weed and the like, are not inter regalia in the sense of being inalienable, but must in the general case be held to belong to the proprietor of the adjacent lands as pertinents thereof without a royal grant, provided always he do not impede the uses of navigation, which is the single restraint of his right.

Campbell v. Brown, 18th Nov. 1813, F.C., and Boucher and Others v. Crawford, 30th Nov. 1814. F. C., where it was found that proprietors whose lands are described in their titles as bounded by the sea were entitled to gain ground therefrom so far as not inconsistent with the rights of the public.

M'Allister v. Campbell, 7th February 1837, 15 S. 490, where it was held that an infeftment in lands adjacent to the sea, ‘with parts, pendicles, and pertinents,’ was a good title, combined with an allegation of possession, to prevent encroachment on the shore by another for the purpose of taking away shells, sand, wrack, and ware, and whose plea, that a party whose title did not contain an express grant of the shore, nor describe his lands as bounded by the sea, had not condescended on any title in virtue of which he could prescribe a right to the sea-shore, was repelled. This case is also valuable for the explicit statement of Lord Gillies, to the effect that ‘the Court could not hold the shore to be reserved out of a Crown grant wherever it was not expressly inserted in it,’ but that, on the contrary, ‘the conveyance of an estate which is notoriously bounded by the sea conveys the shore as effectually as if the words bounded by the sea were in the charter’

Patterson v. Marquis of Ailsa, 11th March 1846, 8 D. 752, where it was also held that the proprietor under Crown titles of lands adjacent to the sea, although his titles did not contain any express grant of the sea-shore ex adverso of his lands, or of wrack or ware, had a sufficient title to resist an action by another party having lands lying near but not adjacent to the sea-shore, concluding for right to gather wrack and ware thereon. In this case the Lord Ordinary (Wood), in the note to his judgment, which was unanimously adhered to by the Court, appears to have entered into a very full and discriminating examination and review of all the authorities and precedents up to that time bearing on the question determined in the present case, and showed very conclusively, as the Lord Ordinary thinks, that the result here arrived at is right. It is true that the Lord Justice-Clerk (Hope) in that case reserved his opinion how far the Marquis of Ailsa, who obtained the judgment, was to be held as having a full proprietary right to the shore, or merely to the sand, wrack, and ware; but the Lord Ordinary must own that, looking at the opinions of all the judges in the case, as well as the prior decisions, he is unable to see any sufficient

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ground for drawing any such distinction; and at any rate, he thinks that the proof in the present case, which has been already noticed, is amply sufficient to remove all ground for the distinction, supposing that room for it might otherwise be considered to exist.

“Lord Saltoun v. Park'and Others, 24th Nov. 1857, 20 D. 89, where it was held that a proprietor of lands forming a barony bounded by the sea, although not mentioned as the boundary, had right to the sea-weed and ware, and that an averment on the part of farmers and residents in different parishes, that they and the public had been in use to take the sea-ware and sand for upwards of forty years, was not relevant. The Lord Ordinary (Ardmillan) in this case in terminis decided, in accordance with the opinion expressed by him in the note to the interlocutor, that a royal grant to lands, whether erected into a barony or not, and whether stated to be bounded by the sea or not, if de facto bounded by the sea, comprehends the shore with its adjuncts of sea-weed, etc. And although the Court, under a reclaiming note, limited the judgment to a right to sea-weed and ware cast on the shore, which was all that was necessary for the case, they expressed no opinion to the effect that the Lord Ordinary's findings were in themselves erroneous or ill-founded in law.

There comes next the judgment of Lord Jerviswoode in the case of The Lord Advocate v. Maclean of Ardgour, 23d May 1866, 38 Jurist, 584, and 2 Scottish Law Reporter, 25, where the very question now determined by the Lord Ordinary in the present case was directly raised as between the Crown and a subject, proprietor of lands adjacent, to the sea-shore, and decided in favour of the latter. It is true that the judgment in that case is that of a single judge only, not reviewed and affirmed by the Court; but it is also true that, although the decision was wholly adverse to the Crown, it was acquiesced in. Not only so, but the report in the Law Reporter bears that, although a reclaiming note was boxed for the Crown, and gent to the roll, it was afterwards refused before it came out for advising, on a note being lodged for the Crown desiring that it should be so. There was in that case, as here, a proof of the state of the possession, and the Lord Ordinary held it to be entirely with the private party. But here also there has been a very full proof, the import of which the Lord Ordinary, for the reasons already given, holds to be with the pursuer, the private party.

And, lastly, there is the recent case of Hunter v. the Lord Advocate and Others, 25th June 1869, 7 Macph. 899, where, although it was held not to be indispensably necessary to decide'the question determined in the present case, yet the circumstances were such as to raise questions very closely approaching to it, and as to which, consequently, remarks fell from some of the judges which are of value here. In particular, Lords Deas, Ardmillan, and Kinloch, as the Lord Ordinary reads their reported opinions, appear to have entertained and expressed views very much in accordance with the principle upon which the Lord Ordinary has proceeded in deciding the present case. Lord Kinloch (911) expressed himself as follows:—‘I entertain a decided opinion, to the expression of which I think the parties entitled, that, according to our law, the sea-shore is not in patrimonio principis more than are the adjacent lands. In legal theory the Sovereign is proprietor of all lands to which no one else can show a title. When the Crown gives’ off land locally situate on the sea-shore, I am of opinion that, whether the title declares the sea to be the boundary or not, there is thereby given off a right to the sea-shore as part and pertinent of the lands. The right is and can only be granted subject to the public uses of the shore for navigation, fishing, passage, recreation, and the like. And to the effect of maintaining these uses there may theoretically be said to be a trust vested in the Crown.’

With such authority in the law of Scotland as that which has been now referred to, the Lord Ordinary does not see how he could allow himself to be much influenced by the partial quotations which were made to him, as the result doubtless of much elaborate inquiry and learned research by the junior counsel for the Crown, from the reports of cases decided in the English Courts, and from the works of English, French, American, and other foreign authors. It is by the law of Scotland the Lord Ordinary must be governed, and when that law is clear, as the Lord Ordinary, on the strength of the authorities and decided cases to which he has referred, holds it to be, it is not only unnecessary, but would be idle, to enter into any examination of the law of other countries upon the subject. He must be allowed to say, however, that one, and, as it seems to him, about the most valuable of the English decisions to which he was referred on the part of the defender, appears to be strongly adverse rather than favourable for him. The Lord Ordinary alludes to the case of The Duke of Beaufort v. the Mayor, etc. of Swansea, 9th Feb. 1849, 3 Welsby, Harlstine, and Gordon's Exchequer Reports, pp. 413–15, where it was held that the sea-shore between high and low water mark may be parcel of the adjoining manor, and that where, by an ancient grant of the manor, its limits are not defined, modern usage is admissible in evidence to show that such sea-shore is parcel of the manor.

The Lord Ordinary may also explain that he has not adverted to many cases and authorities even in the law of Scotland which were cited in the argument, because they appeared to him to be not only not directly in point, but to have merely a remote and inferential bearing on the question which has now been determined. He thinks it right, however, to notice in a few words the wellknown case of The Officers of State v. Smith, as decided in this Court, 11th March 1846, 8 D. 711; and Smith v. The Officers of State, as decided in the House of Lords, 13th July 1849, 6 Bell, 847; for, besides having a bearing on the points involved in the present case, it elicited to some extent the opinions on these points of Lords Brougham and Campbell in the House of Lords. The judges who took part in the judgment in this Court were Lord Wood, as Ordinary who merely referred to the judgment he had previously pronounced in the case of Patterson v. the Marquis of Aisla, which has been already noticed as unequivocably favourable for the pursuer in the present case; the Lord Justice-Clerk, and Lord Medwyn, who reserved entirely their opinion on the question what is the true nature of the Crown's right to the sea-shore in circumstances similar to those which occur here; and Lords Cockburn and Moncreiff, the former whom appears to have expressed himself as holding that, even in such circumstances, the radical and dominant right of property must be held to be in the Crown. But Lord Moncreiff appears, on the

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other hand to have expressed himself very distinctly to be of an opposite opinion, viz. that a barony title, or even an ordinary Crown title, to lands adjacent to the sea, with parts and pertinents, carries the property of the sea-shore, subject to a trust right in the Crown for public uses. And although in the Court of last resort, Lords Brougham and Campbell stated that they reserved their opinion on that question, as unnecessary to be decided, the former noble and learned lord is reported (p. 496) to have observed, in the course of his remarks, that he took the same view of the matter as Lord Moncreiff.

The defender, it is true, founded, per contra, on the remark of Lord Campbell (p. 501), ‘that whatever may be the effect of the grant of a barony described to be upon the sea-shore, there is no foundation in law for the position that the simple grant of a piece of land will pass tbe sea-shore by which it happens to be bounded.’

But the Lord Ordinary must own that he is unable to see how this incidental observation of Lord Campbell can be held to affect the present case, where the pursuer does not merely and simply hold lands adjacent to the sea-shore, but holds them under a barony and other Crown titles, with parts and pertinents, followed by possession and occupation of the shore for time immemorial.

After a full and careful consideration of the present case in all its features, and especially of the pursuer's Crown titles, defined and fortified by the possession which has followed on them, the result at which the Lord Ordinary has arrived is, that the pursuer is entitled to decree as concluded for by him, under reservation of the Crown's right in trust for public uses. It is unnecessary, and it would be difficult, if not impossible, for the Lord Ordinary now to state or define with exactness what these public uses are, for that question has not been raised in the present case, and was not discussed or argued by the parties. It is left to the public, or to the Crown for the public, to vindicate and protect the reserved rights, whatever they may be, when and in whatever circumstances it may be thought necessary or desirable to do so.”

Against this interlocutor a reclaiming-note was presented on behalf of the Crown.

For the defender and reclaimer it was argued—Two questions arise here—(1) That of title alone; (2) That of prescriptive possession, combined with such grant as the titles give. There is nothing in the titles but a grant of lands and pertinents de facto bounded by the sea. These were erected into the barony of Lochnaw, but there are no grants of barony pertinents, nor is there any expressed sea boundary. The Lord Ordinary proceeds upon a title combined with possession, not a title by itself alone.

On a question of title alone the law has not hitherto been fixed by decisions or otherwise—various important dicta either wayare to be found, butthe point has never yet arisen with the Crown as really involving the rights of foreshore. It is not very material whether the grant is of lands or of barony, as the latter includes only the necessary and appropriate lands, &c. belonging to the barony. Mere erection into a barony does not extend the proprietor's rights of property. It is not disputed that at one time this foreshore belonged to the Crown, but does the alienation of the lands by the Crown include an alienation of the foreshore? The shore clearly is not land in an ordinary sense. The proprietor has a right to the foreshore as a breakwater, and if the baron has the privilege of taking sea-ware without necessarily importing a right of property in the shore, it follows that a mere grant of barony does not vi termini convey the foreshore. The Crown grants are not like those of a subject; a great difference exists between the two—for a granter being a subject has no right and proper interest to interfere with his grantee. The Crown is not to be held to part, save expressly, with that whereof they are trustees for the public, and by retaining which they could better preserve the rights and uses of the public. “Lands” in a grant like this, on a fair construction, cannot be held to carry “foreshore” by mere force of title.

The question then comes to be, has Sir Andrew acquired by exclusive possession for the prescriptive period a right to the foreshore. Have the acts on his part proved this? There is no question of enclosure, nor of gaining ground; the shore has been always as much open as it ever could be. But what are Sir Andrew's own acts? Have they been such as cannot be attributed to anything but a right of property? It is argued for the pursuers (and to this argument the Lord Ordinary has in his interlocutor given effect), that the acts of possession have been all that the subject possessed admitted of, but this the Crown does not admit. All the rights exercised by Sir Andrew have fallen short of being exclusive rights, with exception perhaps of the licenses given to cut kelp. The rights of the public have been, with that exception, only as extensive as those of the proprietor of the adjoining lands. Acts of possession must amount to an assertion of a right of property. If there is no grant the Crown still remain proprietors, for otherwise a question might still arise from this kind of possession, although there existed a grant with an exclusion of foreshores.

Authorities—(1) ( Institution Writers)—Balfour's Practicks, p. 626; Bell's Principles. 1st ed., § 641, last ed., § 641–3, § 739, § 746; Duff's Feudal Conveyancing, p. 65, § 49, p. 63, § 47; Erskine, ii, 1, 6; ii, 6, 17; ii, 6, 18; ii, 6, 1 and 3; ii, 6, 14.; ii, 9, 14; ii, 9, 16; ii, 9, 17; Hendry's Conveyancing, p. 196, § 568; Menzies' Lectures, 3d ed., p. 547; More's Notes on Stair, cc. § 19; Ross' Lectures, vol. 2, p. 176; Stair, ii, 1, 5; ii, 3, 45; ii, 3, 67; ii, 3, 69; ii, 7, 5.

(2) ( Scotch Decisions)— Aikman, 8 S. 943; Berry, 3 D. 205; Brown, M. 14,542; Commissioners of Woods and Forests v. Gammell, 13 D. 854; Fife's Trustees, 8 S. 326; Garden, M. 14,517; Reay v. Falconer, M. 5151; Innes, Hume's Decisions, p. 553; Leslie, M. 14,542; Saltoun, 20 D. 89; Meldrum, M. 12,152; Nicol, 22 D. 335; Officers of State v. Smith, 8 D. 711, H.L., 6 Bell, 487; Paterson, 8 D. 752; Scrabster Harbour Trustees, 2 Macph. 884; Wolfe Murray, Dec. 8, 1808, F.C., p. 36.

(3) ( English Authoritiles)— Attorney-General v. Burridge, 10 Price, 350; Bracton, ii, 12, 4 and 5; Callis on Sewers, 65, 66; Davie's Report of Irish Courts, 152,153; Duke of Beaufort, 3 Welsby, 413; Hall's Essay (on Sea-shores), pp. 2–5, 34–36; Kent's American Law, p. 560; Wheaton, p. 355; Phear, p. 87—(on Rights of Water).

For the pursuer it was argued—(1) It is not denied that the foreshore is capable of becoming private property, and here there is unbroken pos

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session upon an ample title for time immemorial, or at any rate for a period exceeding the forty years of the long prescription. (In support of this Counsel dwelt at length on the evidence of the various witnesses as taken in the proof.) (2) There is, quite apart from possession, a title implying a grant of the foreshore even supposing that possession were not proved. These two views must be regarded, however, as separable rather in law than in fact, as the proprietor of a large property adjacent to the sea will usually, as he did in this case, possess the foreshore. The property in the shore ex adverso of the lands naturally accompanies that of the lands themselves, subject always to the defined uses of the public. Here for centuries there existed a possession, not until recently disturbed, and it is inconceivable that a separate grant of the shore should likewise be a requisite. Were there no tide it would be admitted that the sea would be the natural boundary of the barony, and the existence of a tide does not alter the case.

The defender asserts that this foreshore is not land, it is merely an accessory of the sea, defined by nature, by the tide. Authority alone can decide this, and reference to the municipal law. Admittedly the Crown might or might not grant this subject—this foreshore—in granting lands. They might even give the adjacent estate to one person,—while they gave the foreshore to another. Presumptions, however, may be appealed to, and whether derived from the general principles of law; the history of the transaction by which the Crown granted the lands in question; the nature of the subject; the consequences of regarding the foreshore from one or other point of view;—they all point in favour of the pursuer.

It is urged that the practice both of England and America gives the foreshore absolutely to the Crown, unless there be an express grant, but to follow such guidance here in Scotland would be unsafe; and even in England it seems, to say the least, to be subject to numerous exceptions.

Supposing there were now at issue a question of public policy, a question as to whether the foreshore could be alienated at all, then the authority derived from such instances would have more weight; when, however, it is merely a question of presumption as to whether the alienation (admittedly possible) has or has not taken place, then such examples fail to have influence.

In our own law the authority is clear, and it has been admitted that it was not until the case of The Officers of State v. Smith, that even a doubt interposed. That admission, undoubtedly, must be understood to have had reference rather to decisions than to the opinions expressed by institutional writers, but as a proposition it is true of both. (Here the several dicta of these writers, as at the passages quoted below, were read by Counsel, and their bearing on the subject considered.)

When we come to the decisions, it is found that the early cases were, without exception, either between competing proprietors, or between proprietors and the public who sought to enlarge the category of the public uses of the shore, those rights under burden of which the proprietors enjoyed their own— Innes v. Downie.

The present claim of the Crown is entirely a new one, and the very fact of its never having been previously advanced affords the strongest proof that it is utterly without sound foundation. It is urged that the Crown might lie by whatever the position of other parties as to res judicata might be. But we maintain that the Crown are bound to attend to the due protection of the public uses of the shores. (The various cases were then quoted by Counsel.)

What has actually been decided amounts to this, that the proprietor has a series of exclusive rights against the public. In virtue, then, of what does he possess such rights? Why are they in him rather than in any one else? They are not servitudes. For example, the right of cutting ware for the purpose of manufacturing and Selling kelp, not for the use of an adjoining tenement, is inconsistent with the nature of a predial servitude—(Lord Benholme in Mactaggart v. Maedonall)—and why should they be spoken of as parallel with servitudes or privileges? Undoubtedly the property of the shores resides somewhere—is in some one. This right, treated as an innominate and partly negative one, is nothing more and nothing less than property—property merely subject to those burdens of public use which the peculiar nature of its position has superinduced.

Authorities—( Institutional Writers)—Bell's Principles, 4th ed., § 641; Craig, i, xv., 13, 15; i, xv., 17; Erskine, ii, 1, 5; ii, 1, 6; ii, 6, 17; Stair, ii, 1, 5; ii, 3, 60; ii, 3, 61.

( Decisions)— Boucher, Nov. 30, 1814, F.C., 64; Campbell, Nov. 18, 1813, F.C., 444; Commissioners of Woods and Forests v. Gammell, March) 6, 1851, 13 D. p. 854; Innes v. Downie, May 27, 1807, Hume, 552; Ker v. Dickson, Nov. 28, 1840, 3 D. 154; Macalister v. Campbell, Feb. 7, 1837, 15 S. 490; Nicol v. Blaikie, March 23, 1859, 22 D. 335; Paterson v. M. of Ailsa, March 11, 1846, 8 D. 752; Saltoun v. Park, Nov. 24, 1857, 20 D. 89; Officers of State v. Smith, March 11, 1846, 8 D. 711, H.L., 6 Bell, App. 487; Baird v. Fortune, H.L. April 25,1861, 4 Macq. 127 (Lord Wensleydale's opinion, p. 147, last paragraph); Mactaggart v. Maedonall, 5 M. 534 (Lord Benholme's opinion, p. 547); Magistrates of Culross v. Dundonald, M. 12,810; Duchess of Sutherland v. Watson, 6 M. 199; Smart v., 3 Paton App. 606; Lord Advocate v. Maclean, 1865, 38 Jur.

( English Authority)—Hale dejure maris; Hargrave's Tracts, ed. 1787, part i, cap. vi, pp. 25–28; D. of Beaufort v. Mayor of Swansea, Feb. 9, 1849, 9 Webby, &c. Exch. Rep. 413.

At advising—